A blog devoted to the actors and public policy issues involved in the 1998 District of Columbia Court of Appeals decision in Freedman v. D.C. Department of Human Rights, an employment discrimination case.

Saturday, July 16, 2011

Who is Jeffrey Rosen?

This post was first published on February 28, 2010:

"Cosi" is the one about the two lotharios who make a bet that their girlfriends will be faithful, disguise themselves as Albanian soldiers, try to seduce each other's girlfriend and find that the women aren't faithful after all.

. . . was hard to reconcile with the sexual double standards of the 18th century, which were central to the plot and reflected in the traditional translation of the title: "Never Trust a Woman."

Jeffrey Rosen, The New Look of Liberalism on the Court.

Frau Cosima . . .Arthur Rubinstein, My Young Years.

. . . as I recall, was wearing a black velvet cape, and she looked at me indulgently with her unblinking eyes. The Italian title, she pointed out, was in the third person plural. "They are all like that" would be a more accurate translation, she suggested. And so, she said, . . .

Jeffrey Rosen, The New Look of Liberalism on the Court.

. . . like a judge who is compelled to judge . . .John Fowles, The Aristos.

. . . there was no reason to assume from the title that Mozart and his librettist, Lorenzo da Ponte, approved of male infidelity any more than they approved of female infidelity, or that they thought women inherently more or less trustworthy than men.

In my book Significant Moments I quote liberally (if you'll pardon the pun) from Jeffrey Rosen's 1997 New York Times Magazine article titled "The New Look of Liberalism on the Court." The subject of the article is U.S. Supreme Court Justice Ruth Bader Ginsburg.

Jeffrey Rosen is a law professor and, like Justice Ginsburg, an opera lover. The opening paragraphs of Professor Rosen's article read:

"The most unguarded conversation I've had with Justice Ruth Bader Ginsburg occurred at the Washington Opera. It was two years ago [1995], during the first intermission of a production of 'Cosi Fan Tutte,' and I ran into Justice Ginsburg and her husband on the stairs. 'Cosi' is the one about the two lotharios who make a bet that their girlfriends will be faithful, disguise themselves as Albanian soldiers, try to seduce each other's girlfriend and find that the women aren't faithful after all. The director had tried to add a feminist twist by having the women overhear the bet in the first act, so that they were only 'pretending' to be unfaithful in the second. I suggested to Justice Ginsburg that perhaps this conceit was hard to reconcile with the sexual double standards of the 18th century, which were central to the plot and reflected in the traditional translation of the title: 'Never Trust a Woman.'

Justice Ginsburg, as I recall, was wearing a black velvet cape, and she looked at me indulgently with her unblinking eyes. The Italian title, she pointed out, was in the third person plural. 'They are all like that' would be a more accurate translation, she suggested. And so, she said, there was no reason to assume from the title that Mozart and his librettist, Lorenzo Da Ponte, approved of male infidelity any more than they approved of female infidelity, or that they thought women inherently more or less trustworthy than men."

So who is Jeffrey Rosen?

Jeffrey Rosen is a professor of law at The George Washington University in Washington, D.C. and the legal affairs editor of The New Republic. His most recent book is The Supreme Court: The Personalities and Rivalries that Defined America. He also is the author of The Most Democratic Branch, The Naked Crowd, and The Unwanted Gaze. Rosen is a graduate of Harvard College, summa cum laude; Oxford University, where he was a Marshall Scholar; and Yale Law School.

Professor Rosen's essays and commentaries have appeared in the New York Times Magazine, The Atlantic Monthly, on National Public Radio, and in The New Yorker, where he has been a staff writer. The Chicago Tribune named him one of the 10 best magazine journalists in America and the L.A. Times called him, "the nation's most widely read and influential legal commentator." Professor Rosen lives in Washington, D.C., with his wife Christine Rosen and two sons.

The classical music field is roiled by debate over the original intentions of composers and ways in which contemporary musicians can figure them out, Kapilow said. "Does this sound familiar?" he asked, turning to a panel he called a "legal dream team": Rakove; Larry Kramer, dean of the Law School; Paul Brest, former Law School dean and law professor emeritus; and Barbara Fried, the William W. and Gertrude H. Saunders Professor of Law.

Questions of constitutional interpretation, Kapilow said, are "utterly connected and related to" such questions as: "Can we ever get at the meaning of a piece of music in Mozart's time?" "What are our obligations to that meaning?" and "How does a changing world affect the meaning?"

During the two-hour-long forum, members of the St. Lawrence String Quartet—joined by Bill Moyer, a lecturer in string bass in the Music Department, and harpsichordist Mahan Esfahani—performed works by Mozart, Bach and Corelli to illustrate the many ways a written piece of music can be interpreted, as well as the obstacles that a quest for absolute fidelity to a composer's intentions can encounter. In between performances, legal scholars drew analogies between interpreting music and laws.

As the string quartet performed the first 27 measures of Mozart's Eine kleine Nachtmusik, varying its tempo, its accents and even certain of its notes, Kapilow polled members of the audience as to when they thought the musicians strayed too far away from an authentic reading. (No one in the audience approved of changing any of the notes.)

Such questions of authenticity, however, can themselves be inauthentic, Kapilow said.

Contemporary performances of Mozart's Eine kleine Nachtmusik—which was written in 1787, the same year that the U.S. Constitution was written—are almost never performed exactly as it was written on the page, Kapilow noted.

Many of the conventions associated with the piece have come into existence since Mozart's time, Kapilow said. For example, there is only one accent mark in the entire movement, he said. Only after composer Ludwig van Beethoven did it become customary for compositions to be heavily notated with accents, crescendos and diminuendos, he said.

In the law, there are parallels to questions about what notes to play, contemporary interpretations of terms first used centuries ago and making decisions in the absence of clear instructions, Kramer said. "There are things we might do or not do that the law doesn't speak to," he said.

Many people come to the law expecting to find that it can be literally interpreted, but "a literal interpretation of anything almost never makes sense," Brest said. No court ever doubted that the copyright laws grounded in the Constitution protect musical compositions written on a computer, Brest said. And similarly, courts have ruled that the free speech clause in the First Amendment protects burning the flag, although burning is not literally the same thing as speech.

Kapilow, on piano, and Esfahani, on harpsichord, performed music written by J. S. Bach to illustrate how changing technology has complicated the literal interpretation of musical compositions. Bach was composing before the modern piano was invented, and his compositions must be adapted in order to closely replicate the sound of the harpsichord, Kapilow said. "A question emerges: Should you be faithful to the pitch or the note?"

A legal analogy can be found in the Fourth Amendment's protection from unreasonable search and seizure, which historically was understood largely in terms of property, and its application to wire-tapping and other forms of surveillance, Kramer said.

The musicians and constitutional experts also debated whether there is more contested ground in law or music, and compared a well-educated musician to a wise judge, able to draw on years of accumulated knowledge.

that affirmed a prior agency determination that was handed down by a District of Columbia official who had been found to have violated the Hatch Act (indicating that political loyalties for that official were more important than adhering to federal law) and who was later disbarred for misappropriating estate funds (an act involving moral turpitude).

a blog that called attention to matters that embarrassed the law partners of Vernon Jordan -- an individual who is a personal friend of the Attorney General and who reportedly tried to buy the silence of someone who had had illicit sex with the President.

The USMS tried to assess my feelings about a law parter at Akin Gump (Dennis Race) who had expressly asked that I not publish any statements that embarrassed the firm.